Judge erred in death sentence - defence attorney

Publishing Date : 08 January, 2018

Author : TEBOGO KGALEMANG

The Court Of Appeal (CoA) will on Tuesday hear the arguments in a case in which a two year -death row inmate wants his death sentence to be set aside, insisting that the trial court erred in convicting him.

The 37-year old Uyapo Poloko of Francistown was in 2015 convicted of a single count of murder without extenuating circumstances, attempted murder and theft and was subsequently sentenced to death. He had on January 25, 2010 at Ntshe in Francistown, murdered Vijeyadeyi Kandavanam, attempted to kill Balasingnam Kandavanam and stole cellphones worth P3 500.

In his heads of arguments filed before the CoA, Poloko had through his attorney Tshekiso Thekiso of Tshekiso Ditiro & Jani Legal Practice complained that the appellant’s right to a fair trial by an impartial court had been violated. He said the trial court failed to exercise its discretion for it to administer justice and arrive at a just and fair decision by subpoenaing witnesses who were not called by the state and the then defence attorney whose evidence was crucial to the case.

These, he said, were the security officers employed by the person whom his client is said to have attempted to kill as well as the officer who attended the site visit and project handover. “The evidence of these witnesses was crucial to the issue of whether the appellant went to the complaint’s premises on the morning of 25th January 2010. It matters not that the state and the defence in their own wisdom chose not to call these witnesses. What matters is that the trial court had a duty to render a just decision and in doing so, it had discretion to call these persons to testify,” states Thekiso in his arguments.

Thekiso stressed that though he has no doubt as to the integrity of the trial judge and his ability as a judge, “this appears to me to be a case in which the judge made an innocent error in judgment. The error of judgment does however; create an impression that he had prejudged the matter that served before him before it was concluded. It does create a reasonable likelihood of bias.”

He went on to argue that the state was allowed to submit inadmissible confession before court. They went out on a deliberate plan to squeeze an inadmissible confession in to the record through the back door, he decries. He said the allegation by the state that his client confessed to strangling Balasingnam was not a statement to the witness but a statement to the police. “The alleged confession, he said might have been told to the court by a non-police officer, but on the record, it was made to a police officer.”

Thekiso had during the last session of the CoA applied to be granted permission to give additional evidence but was dismissed. The appellant was represented by a different attorney during trial. On their part the state has urged the court to dismiss Poloko’s agruments and hang him to death. They argued that the defence’s reasons that the trial court misdirected itself, citing that the court showed on record reasons considered in sentencing, “which reasons we submit follow the principles of sentencing as approved by the courts.

The record shows the learned judge’s mind worked on the pertinent factors to consider in reaching an informed and just decision to impose an appropriate term.” The state added that the extenuating factors that the defence claims apply in their case; do not fall in the criteria of factors to be taken to account.